RECTIFICATION OF THE REGISTER-continued.

the Comptroller should be directed to proceed with their application to register. The owners of the two marks appeared to oppose the motions.-Held, by ROMER, J., that there had been no real user of the two registered marks before or since registration, and that they had been registered in Class 42 without any bona fide intention to use them in that class, and that the marks must be expunged as to the whole of Class 42 from the Register. The Comptroller was directed to proceed with the application to register. The owners of the expunged marks were ordered to pay the costs of the motion to rectify. They appealed from the order to expunge, but the Court of Appeal dismissed the appeal with costs. The owners of the marks expunged appealed to the House of Lords. The appeal was dismissed with costs. JOHN BATT & Co. v. DUNNETT AND OTHERS, p. 411.

REGISTRATION.

1. Application to register the name of an individual printed in ordinary type refused. CARROLL'S APPLICATION, p. 82.

2. Name of an individual printed in ordinary type cannot be registered as a Trade Mark. CARROLL'S APPLICATION, p. 82.

3. A Trade Mark cannot properly be registered for goods in which the Applicant does not deal or intend to deal. JOHN BATT & Co. v. DUNNETT AND OTHERS, p. 411.

SLANDER OF TITLE.

1. "Now, in order to substantiate an action for defamation of title you must "make out that the libel is false, and that it is malicious in this sense "—that the man was not saying what he did in defence of his own ❝right, or, as he believed, in defence of his own right-for he might "make a mistake. The cases go to that. I cannot see any ground "whatever for saying that there is any false statement at all on this "document. It appears to me to state nothing more than was "absolutely true. There is not a line to show that it was false. If "that is so there is an end of the action." Per LINDLEY, M.R. ROYAL BAKING POWDER Co. v. WRIGHT, CROSSLEY, & Co., p. 221.

2. "I venture to say that in all actions of defamation, properly speaking, "and also in actions on the case in the nature of slander of title, the "meaning of the writer of the libel complained of is quite immaterial. "The question is, not what the writer meant, but what he conveyed "to those who heard or read according as it is a case of slander or "libel." Per VAUGHAN WILLIAMS, L.J. ROYAL BAKING POWDER Co. v. WRIGHT, CROSSLEY, & Co., p. 224.

TRADE LIBEL.

Circular referring to an order of the High Court.-Trade libel.— Alleged untrue statement.-Alleged malice.-Appeal by Defendants

TRADE LIBEL-continued.

-Admissibility of evidence to explain meaning of document.-Con-
struction.-Appeal allowed. In 1897 two Trade Marks, registered
by the R. Company of New York, were expunged from the Register
of Trade Marks by the order of the Court, at the instance of W.,
C. & Co. Both Trade Marks were labels containing prominently the
words "Royal Baking Powder." Shortly afterwards W., C. & Co.
issued a circular referring to the said order, which circular, and the
statements of travellers and agents of W., C. & Co., were alleged by
the R. Company to be an intimation that the R. Company were not
entitled to sell baking powder as "Royal Baking Powder," and that
W., C. & Co. intended to proceed against persons using the labels to
stop the use of those words. The R. Company commenced an action
to restrain W., C. & Co. from representing that the Plaintiffs were
not entitled to sell their Royal Baking Powder in the United
Kingdom, and from maliciously threatening the customers of the
Plaintiffs with legal proceedings in respect of their sales of the
Plaintiffs' said baking powder. It was held at the trial, that the
circular represented what was not true with regard to the Plaintiffs'
Baking Powder and trade, and was issued not in good faith in support
of a claim or right really made or intended to be exercised by the
Defendants, but maliciously, and had caused special and substantial
damage to the Plaintiffs. An injunction was granted in the terms
of the first part of the writ, and an inquiry as to damages was also
granted, with costs up to and including judgment; the costs of the
inquiry were reserved. The Defendants appealed.-Held, on appeal,
that there being no circumstances to suggest that the circular had a
secondary meaning evidence to explain its meaning was inadmissible,
and that the circular did not mean that the Defendants intended to
proceed against persons selling the Plaintiffs' Baking Powder under
the name 66
Royal Baking Powder," and that the circular was not in
any respect untrue. The appeal was allowed with costs in both
Courts, the costs of the inquiry to be costs in the action. ROYAL
BAKING POWDER CO. . WRIGHT, CROSSLEY, & Co., p. 217.

TRADE MARK. See MISREPRESENTATION, No. 1.

Words not being in themselves proper Trade Marks if surrounded with some flourishes do not constitute a distinctive label. Per ROMER, L.J. CLEMENT & CIE.'S TRADE MARK, p. 618.

TRADE NAME. See INJUNCTION.

1. "Cellular." Appellants held not to have established that the word denoted their goods in the market.-Trade name-Action to restrain the use of trade name.—Action to restrain the passing off and use of "Cellular" as applied to cloth or clothing.-Descriptive name.-Contemporary subsistence of primary and secondary meaning in different parts of United Kingdom.-Probability of deception.Absence of deceit or fraud.-Interdict refused.-Appeals dismissed. A trader in 1886 made a new weave of fabric generically known under the name 66 Gauze," and selected for this weave the name "Cellular,"

TRADE NAME-continued.

and in 1888 assigned whatever rights he had in the fabric and name to the Pursuers' Company, which was formed for the purpose of selling it and goods made from it, and incorporated under the name "The Cellular Clothing Company." They advertised extensively all over the world, and in their advertisements prominence was given to the word "Cellular." Various rival traders, after using the name "Cellular," gave undertakings or submitted to injunctions restraining them from continuing to use it, or selected other names to describe similar textile fabrics made or sold by them. The bulk of the trade in the particular fabric was in England and the Colonies, the Scotch trade being very small. In the beginning of 1897, M. & M., a firm of Scotch warehousemen, who did not manufacture, issued in a book, the leaves of which folded up, ranges of goods supplied to them by various makers, and upon one series of patterns they stamped the word "Cellular" in block letters, the only sign of the goods. being their's or supplied by them appearing in the initials "M. & M." stamped on the outside of the book. Certain persons to whom the book was supplied ordered "Cellular " goods but they did not expect to get goods of any particular maker. The Pursuers, the C. C. C., brought action to interdict the Defenders M. & M. from using the word "Cellular " so as to denote cloth or clothing other than the cloth or clothing of the Pursuers, and from selling cloth or clothing as "Cellular" cloth or clothing so as to lead purchasers to believe that the cloth or clothing was of the Pursuers' manufacture. Pursuers averred that "Cellular" in the market meant exclusively their goods. The Defenders averred that the goods described by them as "Cellular" were in point of fact "Cellular," and that as it was an appropriate description, it had not been and could not be monopolized by any trader. A large body of testimony was adduced. The English traders examined were unanimous that "Cellular" meant the Pursuers; but the opinion of the Scotch traders was divided. There was no evidence from the public as apart from the trade. The evidence as to the exactness of the term as a description of the cloth was conflicting, but all the witnesses agreed that while the term had not been used in connection with cloth before the Pursuers had applied it as a name to their cloth, and before then it would not have presented any picture to the mind, yet when the name and the cloth were seen together, the name was recognised as appropriate and suggestive, if not an exact description of the fabric. Interdict was refused by the Lord Ordinary and by the Inner House. The Pursuers appealed to the House of Lords.-Held, that the appeal failed, and it was dismissed with costs. Per the LORD CHANCELLOR.-It was for the Appellants to establish, if they could, that an ordinary word in the English language properly applicable to the subject matter of the sale was one which had so acquired a technical and secondary meaning that it could be excluded from the use of everybody else

the

Pursuers have failed in establishing this initial fact. Reddaway v. Banham, 13 R.P.C. 218, considered. THE CELLULAR CLOTHING Co. 1. MAXTON AND MURRAY, p. 379.

2. "If a man invents a new article and protects it by a Patent, then, during "the term of the Patent, he has of course a legal monopoly, but when "the Patent expires all the world may make the article, and if they make the article they may say that they are making the article,

66

may

F

TRADE NAME-continued.

"and for that purpose use the name which the Patentee has attached "to it during the time when he had the legal monopoly of the manu"facture. But, my Lords, the same thing in principle must apply "where a man has not taken out a Patent, as in the present case, but "has a virtual monopoly because other manufacturers, although they 66 are entitled to do so, have not in fact commenced to make the article. "He brings the article before the world, he gives it a name descriptive "of the article-all the world may make the article, and all the world may tell the public what article it is they make, and for that purpose "they may prima facie use the name by which the article is known in "the market." Per LORD DAVEY. CELLULAR CLOTHING CO. v. MAXTON AND MURRAY, p. 409.

3. Appellants held not entitled to the name of a dissolved Company but to describe themselves as successors, and Defendant held not to have represented himself as such successor.-Company wound up.-Goodwill sold by liquidator_to another Company with different name.-Defendant trading under name similar to dissolved Company.-Injunction refused. In 1896, The Sabiston Lithographic and Publishing Company, incorporated under Letters Patent in Quebec, was wound up, and the goodwill and assets sold by the liquidator. Subsequently the Appellant Company was formed to take over the assets of the dissolved Company. In 1896 the Respondent registered a declaration of his intention to trade under the name of Sabiston Lithographing and Publishing Company. The Appellants sought to restrain the Respondent from so doing.-Held, by Mr. JUSTICE DE LORIMIER, that the Appellants were entitled to an injunction and damages.Held, by the Court of Queen's Bench in Quebec, that the Appellants were not entitled to an injunction.-Held, by the Judicial Committee of the Privy Council, that the Appellants had no right to the name of the old Company, and, as there was no evidence of the Respondent having held himself out as successor to the old Company, the Appellants were not entitled to an injunction. MONTREAL LITHOGRAPHING Co., LD. v. SABISTON, p. 444.

4. "Dolly Blue." Concurrent user held to be proved.-Trade name. --Action to restrain passing off by use of trade name.-Concurrent user.-Injunction granted at trial.-Appeal.-Injunction discharged. -Interest on costs ordered to be repaid not given to successful Appellants. In 1888 E. commenced to call his blue "Dolly," and it was ordered, invoiced, and advertised thereafter as "Dolly." In 1894 a Company was formed which took over the business of E. In 1898 the Company commenced an action against G. & Son for supplying blue not being the Plaintiffs' to persons ordering "Dolly Blue." The blue so supplied was blue manufactured by R. and bore R.'s Trade Mark, which consisted of a washing tub called in some parts a "Dolly tub and in other parts a "Peggy " tub with a handle projecting from it, which handle was alleged to be the handle of a dolly or a peggy. R. had used this Trade Mark since 1871, and registered it under the Trade Marks Act in 1876. It was admitted that R.'s blue was called "Oval Blue" and was invoiced as "Oval"; but the Defendants' case was that retail customers often asked for it as "Dolly Blue," both before 1888 and since, and that there had, in

TRADE NAME-continued.

fact, been a concurrent use of the word "Dolly" to describe E.'s blue and R.'s blue.-Held, at the trial, that the Plaintiffs were entitled to an injunction. The Defendants appealed.-Held, by the Court of Appeal, that concurrent user of the term "Dolly" to denote Ripley's blue as well as the Plaintiffs' was proved, and the judgment of the learned Judge at the trial was wrong. The appeal was allowed, with costs above and below, and the Plaintiffs' costs of the trial, which had been paid by the Defendants, were ordered to be repaid to them, but without interest. EDGE & SONS, LD. v. GALLON & SON, p. 509.